In order to determine whether Regeneron's pleading is sufficient to survive Merus's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must apply Second Circuit law. See Invitrogen Corp. v. Biocrest Mfg., L.P. , 424 F.3d 1374, 1378-79 (Fed. Cir. 2005) ("The Federal Circuit applies its own law with respect to issues of substantive patent law and certain procedural issues pertaining to patent law, but applies the law of the regional circuits on non-patent issues.").

Recently, applying Ninth Circuit law, the Federal Circuit determined that the sufficiency of a patent infringement Complaint is governed by Official Form 18 in the Appendix of Forms to the Federal Rules of Civil Procedure ("Form 18"). K-Tech Telecomms., Inc. v. Time Warner Cable, Inc. , 714 F.3d 1277, 1283 (Fed. Cir. 2013). Citing Federal Rule of Civil Procedure 84, the Federal Circuit stated that "proper use of a form contained in the Appendix of Forms effectively immunizes a claimant from attack regarding the sufficiency of the pleading." Id . The year before, the Federal Circuit applied Sixth Circuit law and came to the same conclusion. In re Bill of Lading Transmission & Processing Sys. Patent Litig. , 681 F.3d 1323, 1333-34 (Fed. Cir. 2012); see also McZeal v. Sprint Nextel Corp. , 501 F.3d 1354, 1355-56 (Fed. Cir. 2007) (Dyk, J., concurring in part and dissenting in part) (applying Fifth Circuit law).

Merus's argument amounts to an assertion that the Federal Circuit has essentially created a Twombly "off-ramp" for patent cases: when the principles set forth in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), conflict with Form 18, compliance with Form 18 is sufficient. See K-Tech , 714 F.3d at 1283 (determining that "a proper use of a form contained in the Appendix of Forms effectively immunizes a claimant from attack regarding the sufficiency of the pleading"). Neither Congress nor the Supreme Court has directly addressed this issue. Notably, the Federal Circuit has not addressed the proper relationship between Form 18 and Twombly under Second Circuit law.

Although the Second Circuit is in accord with the Ninth, Sixth, and Fifth Circuits insofar as it applies de novo review to district court determinations on Rule 12(b)(6) motions to dismiss, see, e.g., Freedom Holdings, Inc. v. Spitzer , 357 F.3d 205, 216 (2d Cir. 2004) (citation omitted), it does not necessarily follow that the Second Circuit takes the same approach as these other circuits to Form 18. Since the Second Circuit has not addressed the issue (and the Federal Circuit has given no indication as to what it believes the Second Circuit would decide if faced with the question), the Court considers the issue based on its own view of Second Circuit precedent.[1]

A recent district court in the Fourth Circuit engaged in a thorough analysis of the relevant history and case law concerning Form 18; it ultimately rejected the Federal Circuit line of cases and declined to exempt patent actions from Twombly. Macronix Int'l Co. v. Spansion, Inc., No. 13-cv-679, 2014 WL 934505, at *4-7 (E.D. Va. Mar. 10, 2014). The court reasoned that the Federal Circuit "took the view that Twombly did not really change the pleading requirement of the Federal Rule of Civil Procedure 8 as articulated by Conley, '" id. at *4 (quoting McZeal , 501 F.3d 1356 n.4), but that such a view is at odds with the Fourth Circuit's interpretation of Twombly. Id. at *4-6 (holding that "it is high time that counsel in patent cases" determine "exactly what claims should be alleged to be infringed and how they are infringed" prior to filing a Complaint).

This Court finds that the Federal Circuit's determination that Twombly is inapplicable to patent cases conflicts with significant Second Circuit precedent applying the principles of Twombly at the pleading stage of civil cases.

This Court has found no basis in Second Circuit precedent to treat patent cases differently from other cases in which forms exist and to which Twombly applies. The principles set forth in Twombly apply to the evaluation of pleadings in patent infringement cases in this Circuit.

Thus, the sufficiency of Regeneron's claim for patent infringement is assessed pursuant to the basic elements set forth in Form 18 as ...

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